United States v.Mitchell

United States District Court, D. Maine

June 17, 2016

UNITED STATES OF AMERICAv.JERMAINE MITCHELL and AKEEN OCEAN

ORDER ON MOTION FOR DISCOVERY SANCTIONS

JOHN
A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE

Concluding
that Mr. Mitchell has failed to demonstrate the Government
has committed any discovery violations, the Court denies Mr.
Mitchell's motion for discovery sanctions to the extent
he requests a continuance of a long-scheduled trial; however,
the Court defers ruling on whether it will allow a brief voir
dire of a Government witness outside the presence of the
jury, allowing the parties to present a more concrete context
for the Court's ruling

I.
PROCEDURAL BACKGROUND

On
February 12, 2015, a federal grand jury indicted Jermaine
Mitchell and Akeen Ocean (Defendants), along with nine
others, charging them with engaging in a conspiracy to
distribute cocaine base. Indictment (ECF No. 3). Mr.
Ocean pleaded not guilty to the charge on February 20, 2015,
Entry (ECF No. 74), as did Mr. Mitchell on March 13,
2015. Entry (ECF No. 149). The Defendants' jury
trial is set to begin on June 20, 2016, Notice of
Hr'g (ECF No. 430), with the jury having been
selected on June 7, 2016. Entry (ECF No. 482).

On June
16, 2016, Mr. Mitchell filed a motion for discovery sanctions
against the Government. Mot. for Disc. Sanctions
(ECF No. 495) (Def.'s Mot.). The Government
filed its objection to Mr. Mitchell's motion on June 17,
2016. Gov't's Obj. to Def. Mitchell's Mot.
for Sanctions (ECF No. 497) (Gov't's
Opp'n).

(D) Defendant respectfully requests the government to produce
documents relating in any way whatsoever to reports of
physical examination and/or scientific tests or experiments
within the purview of Rule 16(a)(1)(D).

(E) Defendant requests, pursuant to Rule 16(a)(1)(E), that
the government disclose a written summary of testimony that
the government intends to introduce pursuant to Fed. Rules of
Evidence 702, 703, or 705.

Id. at 1. In response to Mr. Mitchell's
discovery request, the Government produced a high volume of
material, including data from several telephones that
purportedly belonged to Mr. Mitchell. Def.'s
Mot. at 2. In the discovery were voluminous records from
the AT&T telephone company, including records relating to one
of Mr. Mitchell's alleged cellular telephones.
Gov't's Opp'n at 1. Additionally, the
Government produced the results of search warrants on nine of
Mr. Mitchell's alleged cellular telephones, and in total
the telephone record discovery regarding Mr. Mitchell
consists of several hundred pages. Id.

The
telephones were received by Government agents on or about
September 7, 2013, and were subjected to forensic examination
during September, 2014. Def.'s Mot. at 2. As a
result of the forensic examination, the forensic examiner
generated "Extraction Reports, " consisting of
lists of contacts and some text messages, which the
Government disclosed to the Defendants in a timely manner.
Id. Using some of the data from one of the
telephones, the Government has conducted an analysis of the
data using unidentified computer software, and as a result
has produced a chart (Exhibit 37) that purports to show the
connection between Mr. Mitchell's telephone and the
telephones of other alleged members of the alleged
conspiracy. Id.; Def.'s Mot. Attach. 2
Gov't Ex. 37 (ECF No. 495) (Ex. 37).
The Government has not produced a report that identifies who
performed the analysis that created Exhibit 37, the
qualifications of that person, the identification of the
forensic tools used to perform the analysis, the
specifications of the software used to perform the analysis,
or any information concerning the accuracy of the software.
Id.

Exhibit
37 was disclosed to Mr. Mitchell as part of the
Government's exhibits in a mailing on June 9, 2016,
received by Mr. Mitchell on or about June 13, 2016, one week
before the scheduled start of trial. Id.; Notice
of Hr'g (ECF No. 430).

III.
POSITIONS OF THE PARTIES

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;A.
Jermaine ...

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